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“Can You Hear Me Now?” The Voices of the Constitution’s Framers Come Through Loud and Clear in the Upcoming Cellphone Search Cases

When the police arrest someone, is it unconstitutional for them to then search through the contents of that person’s cellphone without a warrant? This question will come before the Supreme Court very shortly in a pair of cases that everyone with a cellphone should be watching. Though the question may sound like a thoroughly modern legal conundrum, the Framers of the Constitution in fact had something to say about the propriety of such searches – they are prohibited by the Fourth Amendment.

Nonetheless, many states now allow the police to rummage through the contents of an arrestee’s cellphone without first obtaining a warrant. California is one of them. David Riley’s cellphone was seized when he was arrested by the San Diego Police, who then went through the contact list, personal photos and videos that he had stored on his phone. California prosecutors used evidence the police found during that warrantless search to charge Riley with a crime that had occurred weeks before. Riley has taken his case to the Supreme Court, and Riley v. California is one of two cases involving the warrantless search of an arrestee’s cellphone that the Court will hear on April 29, 2014.

Obviously, Riley’s Samsung Instinct m800 smartphone is a device with capabilities beyond the wildest imagination of the Founding generation. But the search itself has a quality that the Founders would have immediately recognized and detested. The police did not obtain a warrant giving them permission to search Riley’s phone, and did not demonstrate they had probable cause to believe the phone would contain specific evidence of a specific crime. Yet they went through his phone anyway, hoping to turn up something incriminating. For the Founding generation, broad searches like this were a familiar evil, one that the Framers took pains to prohibit. Constitutional Accountability Center’s amicus brief in Riley v. California and its companion case, United States v. Wurie, puts this critical history in front of the Supreme Court’s Justices.

To understand the Founders’ revulsion toward broad, warrantless searches, it’s important to understand how “general warrants” worked. Going back to the mid-17th Century in England, the British government had empowered its officers to conduct broad searches by issuing general warrants, which authorized officers to search the property and belongings of any individual, even in the absence of any individual suspicion. Government officers had the leeway to be incredibly invasive, smashing open trunks and breaking through doors.

Because general warrants could be obtained to target anyone an officer disapproved of, even if the officer did not have probable cause to suspect the individual of particular criminal activity, they could be used to target political opponents. For example, the printing shop of a publisher known to be critical of Parliament could easily become a target. In that sense, general warrants undermined free speech and dissent as well as individual security and privacy.

The use of general warrants continued under British rule in the American Colonies and became a galvanizing cause on the eve of the Revolutionary War. In the famous Paxton’s Case, a group of Boston merchants who had been targeted for searches by customs officials challenged the practice, with their lawyer James Otis arguing that general warrants “place[] the liberty of every man in the hands of every petty officer.” John Adams famously remarked that the case, which prompted widespread public outcry, “was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child of Independence was born.”

The importance the Framers placed on these concerns is evident from the history of the drafting of the Constitution and the text of the Fourth Amendment. After the Constitution was sent to the states for ratification, several states asked for more explicit protections against general warrants and broad searches. Anti-Federalist leaders made protecting against general searches a central plank of their agenda as they successfully lobbied for the addition of the amendments that would become the Bill of Rights. Patrick Henry, for example, protested that without specific protections, the Constitution would permit searches “in the most arbitrary manner without any evidence or reason.” The extremely detailed and comprehensive text of the Fourth Amendment reflects the special care taken to address these concerns:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As any modern smartphone owner can appreciate, such phones indisputably contain the contemporary equivalent of “papers” and “effects.” The emails, photos, calendars and other documents on our cellphones can be as personal, private and essential as any materials kept in a locked chest during the Founders’ time. Similarly, a smartphone may be as vital to modern journalists’ ability to publish freely as a printing office might have been in the 18th Century. And it is clear that digital content will only become more integrated into our lives in the coming decades.

In short, the text and history of the Fourth Amendment make it abundantly clear where its Framers would have stood on the Riley case, and why. Americans in every state have the right to have their “papers” and “effects” protected against warrantless searches, whether they’re hard copies or in digital form, and the Supreme Court should so rule.